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The Court of Criminal Appeals will be sitting at Texas Tech Law, October 2

The Court of Criminal Appeals will be sitting at the Don Hunt Courtroom at the Texas Tech School of Law on October 2, 2013.  Arguments will begin at 9:00am.  Here are the cases set for oral argument.

Jaime Piero Cole
Capital murder/Harris County
For the State: Bridget Holloway
For the Appellant: Heather Lytle and Amy Martin
Cole was accused of murdering his estranged wife and his stepdaughter in Harris County in 2010. He
was convicted of capital murder and sentenced to death in 2011.
Cole fled Harris County after committing the murders and was arrested in Wharton County. He was
taken before a Wharton County magistrate who informed him of his legal rights, including his right
to request the appointment of counsel. The magistrate explained that he should request the
appointment of counsel in Harris County if he could not afford representation. Cole signed the
magistrate’s warnings and indicated that he did not request appointed counsel at that time.
Cole was then questioned by two Houston Police Department officers in Wharton County. They
advised him of his rights and asked to hear his version of events. Cole responded, “It’s not gonna
happen tonight,” then volunteered, “You were right about one thing, it was not planned.” Cole later
stated, “I don’t want to talk anymore,” but the officers continued to question him and he confessed to
the crime. When Cole was later questioned by another officer in Harris County, he declined to waive
his rights and requested appointed counsel. Shortly thereafter, he said that he changed his mind and
wanted to make a statement. The trial court suppressed the statements Cole made in Wharton County
after he told police that he did not want to talk anymore, but admitted his prior statements. The trial
court also admitted the statements he made in Harris County.
At the punishment phase of trial, Cole called an expert witness on prison security who testified that
prison was “a fairly secure place.” Over Cole’s objections, the trial court permitted the State to rebut
this testimony by cross-examining the expert about specific reported acts of violence committed by
other inmates in prison.
Issues: Did Cole voluntarily, knowingly, and intelligently waive his right to counsel before he was
questioned in Wharton County? Did the Wharton County magistrate properly inform Cole of his
rights? Did the police fail to honor Cole’s invocation of his right to remain silent and his right to
counsel when he was questioned in Harris County? Did the trial court violate the Eighth Amendment
and Texas Rule of Evidence 403 by allowing the State to cross-examine the defense expert witness
about acts of violence committed by other inmates?

Brian Shawn Gilley
Aggravated Sexual Assault of a Child / Wichita County
For the Appellant: James A. Rasmussen
For the State: John Roger Gillespie
Appellant was charged with molesting his daughter, who was six years old at the time of trial.
Appellant filed a pretrial motion seeking to have the trial court determine if she was competent to
testify. The trial court interviewed the girl in chambers with no one else present except the court
reporter. The trial court found the girl competent to testify.
The court of appeals held that excluding counsel from the competency determination did not
violate the confrontation clause of the Sixth Amendment or Article 1, Section 10 of the Texas
Constitution. The in-camera hearing was not the only chance to test the victim’s competency to
testify and Appellant would have the opportunity to cross-examine her at trial. Appellant’s right to
be present was not violated as his personal participation would not have borne a substantial
relationship to his opportunity to better defend himself at trial. The exclusion of Appellant’s
counsel from the hearing does not change the analysis. Even if the trial court did err, excluding
appellant and his counsel was harmless.
Appellant argues that a competency examination is a hearing under Rule 601, so the presence of
litigants is required. Refusing to allow counsel to attend a proceeding where his client bears the
burden of proof violated the Sixth Amendment right to counsel. The decision conflicts with
Supreme Court cases describing the importance of counsel's participation in child competency
determinations. Without knowing what was said in the hearing, counsel could not test the child's
competency during trial. Determining witness competency is properly considered a stage of trial,
and the accused is entitled to assistance of counsel at all stages of trial.
Issue: Whether an accused's Sixth Amendment right to counsel is denied if the trial court excludes
counsel for the accused from attending a Rule 601 determination of the competency of child

Danette Weller


School of Law